Venkata Chinnaya Rau v. Venkataramaya Garu (1881) 1 I.J. 137 (Mad.)

INNES, J. – The plaintiffs’ sister, by deed of gift on the 9th April 1877, made over certain landed property to the defendant, her daughter. By the terms of the deed which was registered, it was stipulated that an annuity of 653 rupees should be paid every year to the plaintiffs as had hitherto been paid by the donor until a village could be given them.

The defendant on the same date executed in plaintiffs’ favour a Kararnama promising to give effect to the stipulation of the deed of gift by paying the annuity until she gave them a village. The annuity was not paid and the plaintiffs sued to recover it.

Various pleas were set up, one of which was that the document in favour of plaintiffs was executed under coercion. The Courts below have found, upon evidence warranting the finding, that there was no coercion, but that the document was executed and registered voluntarily by defendant.

The first question argued before us was whether the plaintiffs, who were strangers to the consideration for the promise, have a right to sue. The document executed by the defendant in favour of the plaintiffs was in these terms: “According to the terms set forth in the 12th paragraph of the dead of gift of possession, & c., I hereby agree to continue to carry out in your favour, perpetually and hereditarily, & c., the terms stated in the said paragraph.”

There is great conflict in the cases on the question, but the rule deducible seems to be that the plaintiff can only sue if the consideration moved directly from him wholly or partly. In case of Dutton v. Poole, [2 Lev. 210, 1 Ventr. 318], Sir E. Poole was about to fell timber on his estate to the value of £ 1.000 for the purpose of giving that sum to his daughter Grisel as her marriage portion. The eldest son interposed and promised Sir Edward that if he would refrain from felling the timber, he (the son) would pay Grisel £ 1,000. Sir Edward agree to this, and gave up his intention of felling the timber. On his death the son refused to fulfil his promise. The daughter Grisel (joining her husband) sued, and it was held she might do so for the son had the benefit of the timber and the daughter had lost her portion through the promise of the son. There is also another similar case called Rockwood’s case in which the father, at the request of the eldest son, and on his promise to pay an annuity to each of the younger sons, refrained from charging the lands with the annuity. In this case, when on the death of the father the eldest son who came into the property refused to pay the annuity, it was held that the younger sons could sue. In these cases the consideration moved indirectly from the plaintiff to the defendant. In each case the action of the defendant operated to shut out the plaintiff from a certain benefit and to substitute a future benefit dependent on the fulfilment by him of his promise. On the other hand in Tweddle v. Atkinson [30 L.J.Q.B. 265] it was held that the plaintiff could not sue. The case was this the parents of the plaintiff and his wife agreed together after the marriage that each should pay a sum of money to the husband, and that the latter should have full power to sue for the money. The plaintiff in this case was held not to be a party to the consideration, and on this ground not entitled to sue. The distinction between this and the preceding cases is obvious. The plaintiff did not lose anything by the arrangement between the two parents, nor was he worse off from the non- fulfilment of the promises than he would have been if they had not been made, nor did the promises result in any present benefit to the persons promising to the detriment of the plaintiff; so that there was no consideration moving directly or indirectly from him to the defendants. It cannot be doubted in the present case that the document A was executed by defendant in pursuance of the donation deed B, and with a view that the defendant might take the benefit of that deed.

Plaintiffs’ sister, the donor, expressly stipulated that the sum she had hitherto paid should be continued to plaintiffs until they could be provided with a village, and it appears that she only ceased to pay plaintiffs the annuity herself, because the source from which it had been derived was now placed in the hands of defendant and subject to her control. By the transfer effected by B therefore, defendant gained a large estate and plaintiffs lost the yearly sum which the donor would otherwise have paid them. It seems to me that the case is on the same footing as Dutton v. Poole, and that a consideration indirectly moved from plaintiffs to the defendant. If there was consideration moving from plaintiffs for the promise contained in A, the agreement can be enforced by plaintiffs and the Courts below were right in giving them a decree for the annual sum due and not paid.

As to the question whether the document A is sufficiently stamped it has already been admitted in evidence as duly stamped, and this Court has no power to exclude it as inadmissible, though, if it were thought the document had been wrongly stamped, we might act under Section 50 of the Stamp Act of 1879. I think, however, it was properly stamped as an agreement. It was executed when the Act of 1869 was in force, and is not a bond within the definition of that Act.

I would dismiss this appeal with costs.

KINDERSLEY, J.- I agree that the second appeal ought to be dismissed with costs. As to the consideration I should have had some doubt but for the very wide definition of the term “consideration” in the Indian Contract Act, Section 2, which is in these terms: “When at the desire of the promisor the promisee, or any other person, has done or abstained from doing, or does or abstains from doing or promises to do or to abstain from doing something, such act, or abstinence, or promise, is called a consideration for the promise.” It appears to me that the deed of gift in favour of the defendant and the contemporaneous agreement between the plaintiffs and the defendant may be regarded as one transaction, and that there was sufficient consideration for the defendant’s promise within the meaning of the Contract Act.